The Illusory Right To Family Life

Ese Oruru was allegedly abducted by Yunusa Dahiru in August 2015 PHOTO: Ladidi Lucy Elukpo

Ese Oruru was allegedly abducted by Yunusa Dahiru in August 2015 PHOTO: Ladidi Lucy Elukpo

The recent alleged abduction of 14-year old Ese Oruru is one of the most topical issues in current public discourse. From a legal viewpoint, the issues thrown up have centered around the legal age of consent and marriage. These issues have been rightly put in the front burner of public discourse. However, an important fall-out of this incident, which appears to have been neglected, is the girl child’s, and indeed, every child’s right to family life. Anyone under the age of 18 years old is legally considered as a child (see Section 277 of the Child’s Rights Act 2003, Article 2 of the African Charter on Rights and Welfare of the Child (A.C.R.W.C.), Okwueze v Okwueze [1989] 3 NWLR [Pt. 109] 321 at 347 and Ugheneyovwe v State [2004] 12 NWLR [Pt. 888] 626 at 643). Ordinarily, every child ought to be entitled to family life. The importance of the growth, development and education of the child within a loving and conducive family unit cannot be overemphasized. However, it is important to stop here and find out first if there is indeed a right to family life.

Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the Constitution) provides –

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

The side note to the above provision reads – ‘right to private and family life.’ However, the terse provisions of section 37 of the Constitution do not contain any guarantee of the right to family life as indicated in the side note. Rather, section 37 guarantees the right to privacy, a right incidental to the right to family life. One of the long-standing principles of constitutional and statutory interpretation is that the title, heading or side note is only to provide a guide for construction and not to control the express provisions of the statute (see Ibrahim v Judicial Service Commission [1998] 14 NWLR [Pt. 584] 1 at 49, 66-67). Express mention of one thing also implies the exclusion of the other not mentioned (see Ehuwa v Ondo State I.E.C. & Ors. [2006] 18 NWLR [Pt. 1012] 544) at 569-569. Therefore, the omission of the right to family life in the wordings of section 37 of the Constitution can only bear the implication that such right has not been provided for, regardless of the indication in the side note.

For purposes of illustration, it is necessary to refer to provisions guaranteeing the right to family life in other jurisdictions (see Article 17 of the American Convention on Human Rights and Article 8 of the European Convention on Human Rights). From the foregoing examples, it is clear that the right to family life is a right that ought to be expressly provided for and not subsumed under or implied in another right. Article 18 (1) and (2) of the African Charter on Human and People’s Rights succinctly captures the importance of the family in stating – “The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral and (2) The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.” Article 18 A.C.R.W.C. also states – “The family shall be the natural unit and basis of society. It shall enjoy the protection and support of the State for its establishment and development.” Pertinently, Article 19(1) A.C.R.W.C. provides “every child shall be entitled to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents. No child shall be separated from his parents against his will…”

The foregoing is part and parcel of Nigerian law, having been ratified and domesticated in Nigeria (see the African Charter on Human and People’s Rights (Ratification and Enforcement) Act CAP A9 LFN 2010 and Abacha v Fawehinmi [2000] 6 NWLR [Pt. 660] 228 at 228-229). Article 19(1) A.C.R.W.C. is particularly relevant to the Ese Oruru case. The right to family life and the protection of the family unit is thus an enforceable right, this does not however, obviate the need for this very important right to be enshrined expressly in the Constitution. The family is regarded as the basic unit of society. By section 14(2) (b) of the Constitution, the welfare of the people is the primary purpose of government. If the family is the basic unit of society, then, the protection of the family unit should be the primary purpose of government. Arguably, most of the societal vices that bedevil the nation are direct consequences of the failure to emphasize and protect the family unit and the right to family life and values.

The Constitution is the grund norm and takes precedence in the hierarchy of laws. It is inexcusable for the family unit and the right to family life not to be expressly protected in the grund norm. This gaping hole should be filled at the earliest opportunity of a constitutional amendment. It appears that the right to family life has been annihilated in the course of striking the balance between the right of the individual and the state, so that the Constitution only emphasizes rights within the individual and states perspective. Mary A. Glendon in The Transformation of Family Law wrote – “To the French revolutionaries, the old feudal statuses, the Church, the guilds…Aspects of family organization were seen both as oppressive to individuals and as threats to the nation-state…The revolutionary leaders aimed at suppression of the corps intermediaries of the old regime under the slogan ‘There are no rights except those of individual and the State.’ ”

The individual does not exist in a vacuum, but in the family. All the other rights guaranteed by Chapter IV of the Constitution can only be situated properly within the family context, where the individual is designed to flourish. The right to family life is a right that is beneficial not only to the child, but to the entire nation, which is a constellation of millions of families. If the family is protected, the entire nation is protected. Conversely, the neglect of the family is the neglect of the nation. This truism appears too simplistic as a solution to the complex Nigerian problem, but the true solution it is.

Winnifred O. Olanipekun, wrote via winnieolanipekun@yahoo.com



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